New Massachusetts law extends censorship to IM, e-mail, Web

The state of Massachusetts forbids selling or showing smut to kids. But when a …

It has long been illegal in Massachusetts to provide minors with "matter harmful to minors" under the state's "Crimes against chastity, morality, decency, and good order" law. The law targets obscenity, but only its physical forms, which makes it easier to enforce. When little Johnny steps inside the adult video store, clerks can check his ID before selling him that DVD of industrial sexuality. And anyone trying show hardcore porn to a 13-year old knows exactly what they're doing, and who they're doing it to.

In April, this "harmful to minors" law received a brief update—not more than a couple of paragraphs—but they had profound implications for free expression. The new law extended "harmful to minors" to the Internet. In addition to smutty books, films, pamphlets, pictures, plays, dances, and statues (!), Massachusetts decided that the "matter" which might harm minors should now include:

electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.

The law went into effect yesterday, and today it was challenged in court by the ACLU, the Comic Book Legal Defense Fund, and several booksellers. By going digital, the expanded law suddenly moves away from the shop counter and onto the 'Net, where it "threatens Internet communications nationwide and even worldwide."

The ACLU argues in its complaint that "due to the very nature of the Internet, virtually every communication on the Internet may potentially be received by a minor and therefore may potentially be the basis for prosecution." With no easy way to verify anyone's age, everyone on the Internet must be treated as though they are minors. But what does that mean for material that adults can legally access?

"Because Internet speakers have no means to restrict minors in Massachusetts from accessing their communications, the Act effectively requires almost all discourse on the Internet—whether among citizens of Massachusetts or among users anywhere in the world—to be at a level suitable for young children," says the complaint. "The Act therefore bans an entire category of constitutionally protected speech between and among adults on the Internet" and is unconstitutional.

The ACLU also worries that the law makes it too easy to take down speech that would be legal for adults to engage in. "Any person who disagrees with or objects to sexual content on the Internet could cause a speaker to be prosecuted under the Act by having a minor view the online speech," says the complaint, "resulting in a 'heckler’s veto' of Internet speech' where the person who objects can always override those who do not.

According to the complaint, the new rules also inappropriately extend Massachusetts law over the entire Internet and violates the Interstate Commerce Clause of the constitution.

The ACLU wants the new legislative language tossed, though it does not object to the original "harmful to minors" law.

It's worth noting that MA is hardly the only state with this kind of obscenity law. Senate candidate Alvin Greene has encountered a similar law in South Carolina.

whquaint wrote:

"Any person who disagrees with or objects to sexual content on the Internet could cause a speaker to be prosecuted under the Act by having a minor view the online speech"

Uh, wouldn't the heckler then be the guilty child pornographer?

One could maybe come up with a plausible scenario in which you induced a minor to see the material without exposing yourself to liability. Realistically, both parties could probably be prosecuted under such a law.

But none of this has anything to do with child pornography, so it makes no sense to use that phrase.

This is an interesting case in some ways. The Internet aspect of obscenity has nothing to do with civil liberties--if obscenity laws should exist at all, they might as well apply to the Internet. The issue that the ACLU et al have with this change is that it's impossible to enforce, not that the law itself is bad. But I think the fact that the Internet makes this law unenforceable should teach us that the law is not useful in general.

Yet again, a tiny principality (yes, compared to the entirety of human society, the state of Massachusetts is tiny) with a local scope of enforcement tries to enact a law regulating a global environment. I seriously get so tired of this. Do these politicians never THINK about scope?

This is an interesting case in some ways. The Internet aspect of obscenity has nothing to do with civil liberties--if obscenity laws should exist at all, they might as well apply to the Internet.

It seems like this law may have been an attempt to prevent showing obscene media to kids on a smart phone or mp3 player, as well as *knowingly* distributing media to kids via e-mail. It is unlikely that the legislators expected or intended to be able to prosecute someone in Florida (or the Ukraine, etc.) for failing to register with "net nanny". It's probably just poorly written. How does one write enforceable text for "must take all reasonable precautions that distribution of smut will only go to adults"?

Alamout wrote:

The issue that the ACLU et al have with this change is that it's impossible to enforce, not that the law itself is bad. But I think the fact that the Internet makes this law unenforceable should teach us that the law is not useful in general.

If it doesn't work in this case it must not work in general? That's a really silly argument. It's just a jurisdictional problem -- the internet is, by its nature a global phenomenon. If we wanted the internet to behave a certain way, we'd need a global body to regulate it. If we want it to be illegal to knowingly show a minor magazine pictures of people copulating (e.g. the previous incarnation of this law), that works within a state's jurisdiction just fine.

It sounds like even the old law makes it illegal to take a kid to the beautiful and culturally enlightening Boston MFA! I don't see why the ACLU doesn't object to both forms of this shitty legislation.

Edit: Wait, wasn't it Massachusetts that had the case where the underage girls sent risque pictures of themselves to some underage boys and some teachers confiscated the phones at school, found the pictures, and were prosecuting the lot as child pornography makers/distributors? Because if so, then that kind of sheds some new light as to why the state would go this insane with new legislative riders on their obscenity laws. Maybe it's time for Massachusetts lawmakers to be euthanized.

I agree that minors should not see adult-rated content, and that adult business should take all reasonable precautions to ensure that their content be available only to adults. However, this law seems to go far beyond this standard. I believe adults damn well SHOULD have access to adult content, and that producing, distributing, and accessing said content are all perfectly acceptable expressions of free speech, as long, again, as reasonable care is exercised to prevent display to minors.

I'm wondering...but not wondering enough to actually look it up....what the laws are in a place like the Netherlands or Sweden in regards to minors seeing sexually explicit content. And if they do see it, do their little heads explode? Are all males instantly turned into raping machines (not to be confused with "rapping machines", which to me is a bigger problem, but I digress) intent on violating all women?

Guess it's the age old question of why we let minors view violence against people, but viewing a natural act that everyone on the planet is a product of is a big no-no. Okay, anyone seeing some fringe modern porn will have a hard time saying it's a "natural act"....but again, I digress.

It's just a jurisdictional problem -- the internet is, by its nature a global phenomenon.

No it's not just a jurisdictional problem. Even if I were in Massachusetts and communicating with another person in Massachusetts, there is simply no way with most electronic communications for me to know whether that other person is an adult or a minor. This is especially true when the communication is a one-to-many situation such as an e-mail list or forum/blog comment.

In other words, this is a poorly-written law. Likely because the authors don't really understand the nature of these sorts of electronic communications. As a result I strongly suspect the law's opponents will prevail and the law, as written, will be ruled unconstitutional.

I'm wondering...but not wondering enough to actually look it up....what the laws are in a place like the Netherlands or Sweden in regards to minors seeing sexually explicit content. And if they do see it, do their little heads explode? Are all males instantly turned into raping machines (not to be confused with "rapping machines", which to me is a bigger problem, but I digress) intent on violating all women?

Yet again, a tiny principality (yes, compared to the entirety of human society, the state of Massachusetts is tiny) with a local scope of enforcement tries to enact a law regulating a global environment. I seriously get so tired of this. Do these politicians never THINK about scope?

The only scope dumb politicians care about is the reach of their local media.

I just read the law and it seems the law, as written, is against the law...

(their definition of Obscene describes the law itself)

“Obscene”, matter is obscene if taken as a whole it

(1) appeals to the prurient interest of the average person applying the contemporary standards of the county where the offense was committed;(this law appeals to my "prurient" interests to learn more) def:marked by or arousing an immoderate or unwholesome interest or desire)(2) depicts or describes sexual conduct in a patently offensive way; and(I'm offended by this laws depiction of sex)(3) lacks serious literary, artistic, political or scientific value. (Yup, no value found here)(well maybe some political value but I find that to be obscene)

So I supposed under Mass. law, you could get prosecuted for answering a Yahoo Answers question by a Mass kid asking if it's ok to masturbate and how to do so effectively. Because, you know...that's smutty, and we wouldn't want our Mass. kids to perform acts of indecency even though they're very curious about it and everyone else across the country does it.

Ah, a return to the good ol' days of puritanical rule in the Bay State. Let's hope they don't take away the sinner's right to buy milk on the Sabbath. Having grown up in the glorious days of blue laws, I still look back at my home state in wonderment with disdain.

I suppose if this applies to websites it could be stifling and it does seem poorly worded. However I take the thrust of this law to cover directed comunication: "electronic mail, instant messages, text messages, and any other communication".

If this didn't apply to websites, then I have no problem with it. A company that is sending out porn to specific devices via spam (email or otherwise) is no different than one dropping objectional material about town without regard to who might see it. Clearly this wouldn't be allowed. You should only be getting smut directed at you if the sender (not the ISP, but the originator) can verify it is appropriate.

Yes, parents have an obligation, but that doesn't mean access to harmful material should be unfettered.

I must admit, I'm not all that sure that I object to it applying to websites either. Why is it wrong to require a purveyor of material to verify the appropriateness as one does with conventional media. Should kids be able to buy alcohol and booze over the internet?

I suppose if this applies to websites it could be stifling and it does seem poorly worded. However I take the thrust of this law to cover directed comunication: "electronic mail, instant messages, text messages, and any other communication".

If this didn't apply to websites, then I have no problem with it. A company that is sending out porn to specific devices via spam (email or otherwise) is no different than one dropping objectional material about town without regard to who might see it. Clearly this wouldn't be allowed. You should only be getting smut directed at you if the sender (not the ISP, but the originator) can verify it is appropriate.

Yes, parents have an obligation, but that doesn't mean access to harmful material should be unfettered.

I must admit, I'm not all that sure that I object to it applying to websites either. Why is it wrong to require a purveyor of material to verify the appropriateness as one does with conventional media. Should kids be able to buy alcohol and booze over the internet?

Free speech, dude. Just because some people find adult content offensive doesn't mean they can censor the Internet for everyone else. A law that restricted adults' access to adult content would by definition violate the First Amendment.

And it's completely retarded to try to regulate instant messaging traffic. There's an ungodly amount of it. And if the feds somehow worked out an effective system for monitoring IMs, that's why we have a lovely thing called message encryption.

Fuck the children. I mean it. Society is comprised of (mostly) and run by adults. Children should be taught about the world in a realistic manner, not shielded from it.

This law is obscene. Pamphlets? Books? Are you serious? It must be a real pain in the ass to flyer for shows and other art gatherings in massachusetts. "What is this!?? Whatever it is it makes me think and this clearly is not good for children! Obscene!"